KO KANG SUK v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 132/2024, [2024] HKCA 848

On Appeal From [2024] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 132 OF 2024

(ON APPEAL FROM HCAL NO 260 OF 2024)

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REASONS FOR JUDGMENT

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Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1.  This is the Director of Immigration (“the Director”) and Secretary for Security (“the Secretary”) (collectively, “the Respondents”)’s appeal against the order of Deputy High Court Judge Phoebe Man (“the Judge”) dated 13 March 2024 (“the Order”) granting to the Applicant a writ of habeas corpus and ordering his release on recognizance on terms satisfactory to the Director.  At the conclusion of the hearing of the appeal on 15 August 2024, we allowed the appeal with reasons to be given later, which we now do.

BACKGROUND FACTS

2.  The basic facts of this case have been set out in the written decision of Coleman J dated 27 September 2023 (“the 1^st Decision”) in relation to the Applicant’s first habeas corpus application ([2023] HKCFI 2461) and the written judgment of the Judge dated 13 March 2024 (“the 2^nd Decision”) in relation to the Applicant’s second habeas corpus application ([2024] HKCFI 778), and will not be repeated here.  For the present purpose, the following brief summary, taken largely from the 1^st and 2^nd Decisions, should suffice.

3.  The Applicant is a Korean national.  On 28 August 2018, he arrived in Hong Kong with permission to remain as a visitor until 26 November 2018. He failed to leave Hong Kong upon the expiry of his limit of stay.  On 29 May 2019, when the Applicant attempted to depart from Hong Kong, he was found to have overstayed and was reported to the Immigration Department (“ImmD”) for investigation.  On 12 June 2019, the Applicant was convicted of the offence of breach of condition of stay, sentenced to 12 days’ imprisonment (suspended for two years), and fined HK$1,000.

4.  The Applicant was issued with a notice requiring him to leave Hong Kong on or before 20 June 2019.  He did not depart and went underground until he was arrested by the police on 18 August 2020 for the offences of conspiracy to cheat and defraud.

5.  On 8 September 2020, the Consulate General of the Republic of Korea informed ImmD that the Applicant was wanted by the South Korean police, and subject to a warrant of arrest issued by the South Korean court and an Interpol Red Notice.  On 14 September 2020, whilst the Applicant was on remand, he raised a non-refoulement claim on the basis that if he returned to South Korea, he would be harmed or killed by his uncle over some inheritance disputes within the family.

6.  On 19 January 2021, the Director rejected the Applicant’s non-refoulement claim (“the Director’s Decision”).

7.  On 28 October 2022, the Applicant was convicted on two counts of conspiracy to steal and one count of breach of condition of stay, and sentenced to a total of 23 months and 3 weeks’ imprisonment.

8.  On 28 April 2023, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board” or “the TCAB”) dismissed the Applicant’s appeal against the Director’s Decision (“the Board’s Decision”).

9.  On 16 May 2023, the Applicant was discharged from prison, and commenced to be held under immigration detention.

10.  On 6 June 2023, a removal order was issued against the Applicant pursuant to section 19(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”).

11.  On 16 June 2023, the Applicant filed an application for leave to apply for judicial review of the Board’s Decision.

12.  On 19 July 2023, a deportation order was issued against the Applicant pursuant to section 20(1)(a) of the Ordinance.

13.  On 17 August 2023, the Applicant made his first application for a writ of habeas corpus.

14.  On 21 September 2023, Deputy High Court Judge Bruno Chan granted the Applicant leave to apply for judicial review of the Board’s Decision, for reasons which it is not necessary to set out in this judgment ([2023] HKCFI 2386).

15.  On 27 September 2023, Coleman J heard and refused the Applicant’s first application for a writ of habeas corpus. As at that date, the Applicant had been held under immigration detention for some 135 days.

16.  On 22 November 2023, the Applicant filed an originating summons for judicial review of the Board’s Decision (“the JR Proceedings”), pursuant to the leave to apply for judicial review granted by Deputy High Court Judge Bruno Chan.  On 1 December 2023, the Department of Justice made an offer to the Applicant to settle the JR Proceedings, proposing that the Board’s Decision be quashed and the Applicant’s appeal/petition against the Director’s Decision be remitted to the Board for fresh determination.

17.  On 1 February 2024, the Applicant made his second application for a writ of habeas corpus.  That application came before the Judge on 12 March 2024.  As at that date, the Applicant had been held under immigration detention for some 302 days.  At that time, the parties had not yet reached settlement of the JR Proceedings.

18.  On 13 March 2024, the Judge allowed the Applicant’s second application for a writ of habeas corpus and ordered that he be released on recognizance on terms satisfactory to the Director.  The Judge held, inter alia, that:

(1)  The first Hardial Singh principle was satisfied, because the Director had been detaining the Applicant for the sole purpose of removal or deportation throughout the detention period[1].

(2)  The second and third Hardial Singh principles were not satisfied, because the Applicant had been detained for a period (302 days) that was not reasonable, and the likely further period of the Applicant’s detention up to the disposal of the Applicant’s anticipated application for leave to apply for judicial review of any adverse decision of the Board upon re-consideration of his non-refoulement claim (“the Potential Leave Application”), in light of the 302 days that the Applicant had already been detained, would not be reasonable or lawful[2].

(3)  The fourth Hardial Singh principle was satisfied, because the Director had continued in his efforts with the removal of the Applicant throughout the period from 28 September 2023 to the date of the hearing before the Judge[3].

19.  On 9 April 2024, the Respondents filed and served a notice of appeal (“the Notice of Appeal”) against the Order.

20.  On 15 April 2024, the Applicant and the Director reached terms of settlement of his application for judicial review of the Board’s Decision.  The Board’s Decision was quashed and the Applicant’s appeal/petition against the Director’s Decision was remitted to the Board for fresh determination.  As at the date of the hearing of this appeal, there had already been four hearings of the appeal before the Board, and the next hearing had been scheduled for 26 August 2024.

21.  After the conclusion of the hearing of the present appeal, the Department of Justice, by a letter dated 26 August 2024, informed the Court that the Applicant had voluntarily been removed to South Korea on that date.  For this reason, the present appeal has become academic. Nevertheless, in view of the fact the Respondents’ appeal was allowed by the Court on 15 August 2024 with reasons to be given later, and we reversed the Judge’s decision, we shall set out our reasons for allowing the appeal below.

THE NOTICE OF APPEAL

22.  The Respondents advance three grounds of appeal against the Order, contending that:

(1)  The Judge fundamentally erred in being fixated at, and wrongly took into account and/or placed excessive weight on, the presence of a legal impediment to the Applicant’s removal, especially in the form of a future, potential legal impediment (ie the Potential Leave Application), while not having regard to the lack of merit and self-induced delay of such legal impediment (Ground 1).

(2)  The Judge failed to properly assess and/or place proper weight on the risks of abscondence and re-offending, which are factors of paramount importance, having (rightly) found that there was a “high risk of abscondence” and that “the risk of re-offending [was] substantial”[4].  The Judge should have found that the period of detention thus far, as well as the further detention in this case (assessed by the Judge as another 6 months), are in any event not unreasonable (Ground 2).

(3)  The Judge erred in assessing the reasonable period of detention by failing to properly assess and/or place proper weight on her finding of facts relating to “the Applicant’s deliberate delaying tactic”, thereby committing an error of law, and/or making inconsistent findings and/or making a finding that was not sensibly open to her (Ground 3).

DISCUSSION

23.  The ‘Hardial Singh principles’ set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as summarised in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at §46), and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at §23), can be broken down into the following four principles:

(1)  The Secretary/Director must intend to remove/deport the detainee and can only use the power to detain for that purpose (“HS1”);

(2)  The detainee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect removal/deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal/deportation (“HS4”).

See Harjang Singh v Secretary for Security [2022] HKCA 781 ([2022] 4 HKLRD 99), at §52.

24.  The court’s approach when considering an application for a writ of habeas corpus by a non-refoulement claimant on the ground that his continued detention would be inconsistent with the Hardial Singh principles is well-established and has been summarized in Harjang Singh, at §164, and will not be repeated here.

25.  Where a party seeks to challenge a judgment formed by a judge at first instance as to whether a reasonable period of detention has been exceeded, the Court of Appeal’s approach is stated at §161 of Hardial Singh:

“… The first instance judge forms his or her own judgment as to whether a reasonable period of detention has been exceeded in the particular circumstances of the case. That is an evaluative exercise, and it involves balancing a wide range of factors, often competing factors. Forming such a judgment is not the same as being engaged in a discretionary exercise. However, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. It is not helpful to the description of the test to suggest that such interference will only be in a rare case. Rather, the test is sufficiently clear, and appellate interference with a first instance decision will occur when it is appropriate.”

26.  This approach has been affirmed and further explained in a more recent decision of the Court of Appeal in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582, at §44:

“… although both parties agree that the principles as summarized in Harjang Singh at [161] and [164(24)] are applicable (see [21(1)] above), we must emphasize that the decision of whether a detention is lawful or unlawful by reason of its length is not a discretionary decision or a factual determination. There should only be one correct answer. As such, the fact that it may be a difficult judgment for the first instance judge to make in a particular case should not in principle make the appellate court more reluctant to interfere, although the court for that reasons may tend to afford a decent degree of respect or deference to the judge’s weighing exercise of the relevant factors for his judgment before departing from his or her conclusion.”

Ground 1 – relevance of legal impediment to removal

27.  Under this ground, the Respondents complain about the Judge’s taking into account of a (future) legal impediment to the Applicant’s removal and/or the weight that the Judge gave to this factor, arguing that:

(1)  The Judge should have held that the mere presence of a legal impediment does not render it necessarily unreasonable to detain (or continue to detain) the Applicant.

(2)  The Judge should not have regarded the Government’s Updated Removal Policy as conferring on the Applicant a “right” not to be removed until the dismissal of the Potential Leave Application by the Court of First Instance, as the Updated Removal Policy at most provides that a pending non-refoulement claim or an application for leave to apply for judicial review/application for judicial review is recognized as a legal impediment to removal.

(3)  The Judge should not have taken into account the time that may be required to dispose of the Potential Leave Application (being “another 6 months”), since such speculation is premature before having sight of “the Board’s decision and the reasoned basis for it” (citing Bains Charanjit v Hong Kong SAR Government [2022] HKCFI 3772, §43, and Rashid Zafar Ghori v Hong Kong SAR Government [2024] HKCFI 477, §8.8, in support).

(4)  The Judge’s approach would mean that no detention could be exercised before the resolution of all legal impediments, as apparent from the Judge’s remark that an “important factor” that she took into account was “the danger in the Department’s practice of detaining such applicants before the result of an application for leave to commence judicial review [was] even available”[5].  This ignores and curtails the Director’s “discretion to decide whether to detain or continue the detention of a particular individual who falls within a class of persons eligible for detention” (Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, §34).

(5)  Further or alternatively, the Judge failed to take cognizance, adequately or at all, that the Potential Leave Application could well be unmeritorious, and/or the delay in its resolution is in any event self-induced.[6]

28.  None of these arguments has merit.  In respect of §27(1) above, it is not controversial that the mere presence of a legal impediment to removal does not render it necessarily unreasonable to detain (or continue to detain) a non-refoulement claimant held under immigration detention.  However, that was not the basis on which the Judge held that HS2 and HS3 were not satisfied in the present case.  The Judge took into account the anticipated legal impediment to the Applicant’s removal arising from the Potential Leave Application in her assessment of the likely further period of detention (6 months), and came to the view that, coupled with the 302 days that the Applicant had already been detained, his continued detention could not be justified.  The anticipated legal impediment to the Applicant’s removal was a matter which the Judge was entitled to take into account in her consideration of whether HS2/HS3 were satisfied in the present case.  Leaving aside for the moment the correctness of the Judge’s assessment of the reasonableness or otherwise of the period of the Applicant’s detention and/or further detention (which we shall consider under Ground 3 below), we do not consider that the Judge erred in principle in taking into account the anticipated legal impediment to the Applicant’s removal in the present case.

29.  In respect of §27(2) above, it would appear from §30(6)(c) of the 2^nd Decision that the Respondents’ former counsel (Ms Hui) “accepted” that the Applicant had a right, or was entitled, under the Government’s current removal policy, not to be removed until the dismissal of the Potential Leave Application.  In any event, in the context of the present discussion, it is essentially a matter of semantics whether a pending non-refoulement claim or an application for leave to apply for judicial review/application for judicial review is described as a “right” not to be removed prior to the resolution of the claim/application, or a “legal impediment” to removal.

30.  In respect of §27(3) above, the Judge’s view that “it would take at least another 6 months before a determination [would] be given by the Court of First Instance on an application for leave to commence judicial review” seems to us to be a realistic estimate of the time required before the Potential Leave Application could be disposed of.  Whilst obviously it would not be possible to determine the precise length of time required for the disposition of the Potential Leave Application in the Court of First Instance, we do not consider the Judge’s estimate to be “speculation” or “premature”.  With their experience in dealing with hundreds or thousands of applications for leave to apply for judicial review by non-refoulement claimants every year, judges at first instance are well placed to make a realistic assessment of the likelihood of such application being made by a non-refoulement claimant whose claim has been rejected by the Director/Board in any given case, as well as the time required for such application to be disposed of by the Court of First Instance.  With the benefit of hindsight, it is clear that the estimate of 6 months by the Judge is, if anything, a conservative one.  To disregard the Potential Leave Application and assume that the Applicant could or would be removed as soon as the Board renders a decision upon re-consideration of his appeal/petition, on the basis that “such potential additional period of detention [is] rather distant and uncertain to be given any proper weight” (as argued by Mr Lok)[7], is simply unrealistic.  The Potential Leave Application would be a legal impediment to the Applicant’s removal, and the time required before the Potential Leave Application could be disposed of was a relevant matter and something which the Judge was entitled to take into account when assessing the likely total period of detention before the Applicant could eventually be removed from Hong Kong.

31.  This does not mean, of course, that full weight must necessarily be given to the additional time required to dispose of a potential application for leave to apply for judicial review, or that this factor “trumps” all other relevant considerations.  The weight that may properly be given to this factor must depend on the facts and circumstances of any given case, including the length of time that the detainee has already been held under immigration detention, and is a matter for the judge hearing an application for a writ of habeas corpus to decide.  This having been said, it would also be proper to take into account the fact that the Director/Secretary are expected to conduct periodic reviews of detention, particularly where there have been some material change(s) of circumstances[8].  What we do not accept, however, is Mr Lok’s submission that it would be inappropriate, or amount to an erroneous speculation[9], for the Judge to take into account the likely period of time required before the Potential Leave Application could be disposed of.  As for Bains Charanjit v Hong Kong SAR Government [2022] HKCFI 3772 (§43) and Rashid Zafar Ghori v Hong Kong SAR Government [2024] HKCFI 477 (§8.8) relied upon by Mr Lok, they should not be read as laying down any rigid legal proposition that “the Judge should not speculate what will happen after the TCAB’s fresh decision, (naturally) without sight of ‘the Board’s decision and the reasoned basis for it’”.  It is, in our view, wrong in principle to adopt an approach that no regard may be had to any anticipated legal impediment to removal arising from an application for leave to apply for judicial review after a non-refoulement claim has been rejected by the Board on the basis that such legal impediment amounts to a “speculation”.  Any such blinkered approach would be to ignore the reality on the ground.

32.  In respect of §27(4) above, Mr Lok takes issue with the Judge’s criticism of “[ImmD]’s practice of detaining such applicants before the result of an application for leave to commence judicial review is even available”, and seeks to rely on some other decisions made by the Judge, including Nguyen Thi Kim Ngan v Hong Kong SAR Government [2024] HKCFI 531 and Maroof Ashar v Director of Immigration [2024] HKCFI 2030, as showing that the Judge has adopted an erroneous approach that “would have the potentially drastic effect of rendering any detention decisions made before resolution of all legal impediments unreasonable”[10].  We have been told by Mr Lok that ImmD does not in fact have such a practice.  Nevertheless, Mr Lok’s use of other decisions of the Judge in this manner is wholly inappropriate.  In considering the present appeal, the Court is only concerned with the Judge’s decision in this case and not with her decisions in other cases.  Moreover, the approach adopted by the Judge in other cases may well be affected by, or reflective of, the evidence and submissions before her in those cases.  We are not told about, and have no knowledge of, such matters.  Whether the Judge has adopted an erroneous approach in the present case as contended by the Respondents should be determined solely by reference to the relevant evidence, submissions and issues before her in this case.  Nothing can be gained by showing the approach which the Judge adopted in some other cases.

33.  As for Mr Lok’s submissions that the Judge’s approach “would have the potentially drastic effect of rendering any detention decisions made before resolution of all legal impediments unreasonable” and, adopting the Judge’s logic, “it could mean that no detention would satisfy the test of reasonableness, so long as a legal impediment (or, worse still, a future prospective one) remains in place at the commencement of detention”[11], these submissions are based on a mis-reading or misunderstanding of the Judge’s decision.  Nowhere did the Judge hold that as long as a legal impediment to removal remains in place at the commencement of detention (or at any time during detention), no detention could satisfy the test of reasonableness.  It is clear that the Judge did not consider that any legal impediment to removal would necessarily render a detention (or continued detention) unreasonable.  Had that been the Judge approach, she would not have considered other relevant factors such as the Applicant’s delay in the disposal of the judicial review, the risk of abscondence, or the risk of re-offending.

34.  Finally, in respect of §27(5) above:

(1)  Insofar as the merits of the Applicant’s non-refoulement claim are concerned, Mr Lok accepts that the Judge’s attention was not drawn to the assessment of the merits of the Applicant’s underlying non-refoulement claim below[12]. It is also an unfair point to make that “the Judge had before her sufficient materials on the Applicant’s [non-refoulement claim], including the Form 86, TCAB’s refusal decision and CFI’s decision on JR Leave, to make some assessment.  Yet … she failed to undertake such an assessment on the apparent merits of the Applicant’s [non-refoulement claim] (though necessarily on a fairly broad-brushed basis)”[13]. The Respondents were represented by Government counsel at the hearing before the Judge, while the Applicant appeared in person.  If there was a valid point to be made that the Applicant’s non-refoulement claim or the Potential Leave Application was or would be unmeritorious, and the Respondents intended to rely on some such contention, the Respondents ought to have made this point fairly and squarely, bearing in mind that the burden was on the Respondents to justify the detention/continued detention of the Applicant.  It is wholly unfair to criticize the Judge for not coming to a view on the merit of the Applicant’s non-refoulement claim or the Potential Leave Application when the Respondents’ counsel did not see it fit, or feel able, to raise it as a ground in support of the detention/continued detention of the Applicant.

(2)  Insofar as delay in the resolution of the Potential Leave Application is concerned, the Judge in fact made a finding, in the Respondents’ favour, that the Applicant “had deliberately delayed the remittance of his [non-refoulement claim] back to the TCAB for determination” and “had deliberately delayed the judicial process”[14].

35.  In all, Ground 1 is rejected.

Ground 2 – risks of abscondence and re-offending

36.  Under this ground, Mr Lok argues that the Judge’s assessment of the risks of abscondence and re-offending in substance departed from the established principles that “risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of detention”.  Mr Lok contends that if the risks of abscondence and re-offending are given proper weight, a very long period of detention can be justified, relying on Sheikh v Secretary of State for the Home Department [2019] EWHC 147 (Admin), §§85-87, which cited Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, §§44-46, in support.  Mr Lok submits that:

(1)  The Judge should have given more weight to the Applicant’s immigration history and criminal convictions, as well as the serious crime for which he is wanted in Korea, involving elements of dishonesty.

(2)  The Judge did not appear to have had regard to and/or evaluated the Secretary’s latest review of detention on 6 March 2024, which detailed the justifications for the reasonableness of the period of detention and continued detention.

(3)  Having regard to all the risk factors in the present case (including the serious consequence if the Applicant should re-offend, his ability to abscond, and his reluctance to return to his home country, etc.), if proper weight had been accorded to such risks, the Judge should have found that the period of detention thus far, as well as the further detention in this case (assessed by the Judge as another 6 months), are not unreasonable.

37.  This ground of appeal is completely unsustainable. The Judge found that “there [was] a high risk of abscondence for the Applicant” and “the risk of re-offending [was] substantial”, and was fully aware of the principle that “[t]he risk of abscondence is of critical importance in assessing lawfulness of the detention”/“ the risk of abscondence and risk of re-offence are critical factors to be taken into account”[15].  The weight to be given to these matters was primarily a matter for the Judge to decide.  Mr Lok’s submission that the Judge should have given “more weight” to the Applicant’s immigration history and criminal convictions, as well as the serious crime (involving elements of dishonesty) for which he is wanted in Korea, shows a misunderstanding of the basis on which the Court of Appeal may properly intervene in a decision of this nature by the Judge (see §§25 and 26 above).  It is also nothing to the point for Mr Lok to argue that the Judge did not “appear” to have had regard to, and/or evaluated, the Secretary’s latest review of detention on 6 March 2024.  Mr Lok accepted that this review was not specifically drawn to the Judge’s attention.  The mere fact that the Judge did not refer to it in her decision does not mean that she did not have regard to, or evaluate, the Secretary’s assessment.  The weight to be given to the Secretary’s assessment of the risks of absconding and/or re-offending by the Applicant was a matter for the Judge, who was the primary decision maker of the question of reasonableness of the period of detention and/or further detention of the Applicant in the application below.  In any event, the omission (if any) is immaterial since the Judge in fact found a high risk of absconding and re-offending by the Applicant.  We do not see any basis for Mr Lok’s submission that the Judge departed from the established principles that “risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of detention”.

38.  As for the authorities relied upon by Mr Lok, it is necessary only to refer to the following statement by Lord Thomas of Cwmgiedd, CJ in Fardous, at §46:

“… the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably ‘trumps’ other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention.”

39.  In short, Ground 2 is rejected.

Ground 3 – Judge’s assessment of reasonable period of detention

40.  Under Ground 3, the Respondents challenge the Judge’s conclusion that the Applicant had already been detained for a period (302 days) that was not reasonable in the circumstances, and the likely further period of the Applicant’s detention up to the disposal of the Potential Leave Application, on top of the 302 days of detention, would not be reasonable or lawful.

41.  The Judge came to the above conclusion in the following manner.  First, the Judge took the view that there was no good reason for the Applicant’s delay in the filing of the Form 86A in the JR Proceedings, and the Applicant had deliberately delayed the remittance of his non-refoulement claim back to the Board for fresh determination by unreasonably refusing to settle the JR Proceedings.  Hence, the period of detention that the Applicant had prolonged by his deliberate refusal to co-operate (at least between the time when the Department of Justice proposed settlement of the JR Proceedings on 1 December 2023 and its eventual conclusion) should not be counted as unreasonable when determining whether an originally lawful detention had become unlawful[16].

42.  Second, the Judge considered that there was a high risk of abscondence of the Applicant, having regard to the fact that (i) the Applicant was a wanted person in South Korea, both by the South Korean court and the Interpol, and the charge against him in South Korea had recently been updated to include fraud involving a billion South Korean won, (ii) although the Applicant alleged that he was willing to go back to South Korea and withdraw his non-refoulement claim, when the Judge told him in that case, he would likely be repatriated within a week’s time, he immediately retracted by saying that he would insist on going through with his non-refoulement claim, and (iii) the Applicant had previously absconded twice and managed to go underground for more than a year[17].

43.  Third, the Judge considered that the risk of re-offending by the Applicant was substantial, having regard to his previous criminal convictions for two counts of conspiracy to steal[18], and the fact that he was not allowed to take up employment in Hong Kong and thus it was likely that he would be forced to resort to theft/fraud again[19].

44.  Nevertheless, the Judge came to the view that HS2 and HS3 were not satisfied in the present case, for the following reasons:

“Reasonable Period of Detention?

(6) I am of the view that the likely further period that the Applicant will be detained for is not reasonable or lawful:

(a) With the remittance of the Applicant’s NRC back to the TCAB, there is a legal impediment to the Applicant’s removal.

(b) By the DOJ’s estimation, the period from the time the Applicant’s NRC is remitted back to the TCAB and the determination would be about 8 – 10 weeks. However, if the Applicant’s NRC were to be rejected by TCAB on this occasion, and if the Applicant were to apply for leave to commence judicial review against that decision (which the Applicant already confirmed at the hearing that he would), that would take a minimum of a further 5 – 6 months.

(c) Ms Hui for the DOJ confirmed and accepted that the current removal policy of the Department dictates that if the Applicant applies for leave to commence judicial review proceedings against an unfavourable determination by the TCAB, he would not be removed until the dismissal of such application by the Court of First Instance. It is also accepted that this is a right that he is entitled to under the present policy. However, Ms Hui submitted that it is uncertain at this juncture that the Applicant would apply for leave to commence judicial review against an unfavourable outcome and the Department would re-assess the situation should the eventuality arises.

(d) I decline to adopt this approach: the Applicant has already confirmed at the hearing that he would apply for leave to commence judicial review if the outcome of his NRC were to be unfavourable. It would thus be inappropriate for me to pretend that we do not have any indication that the Applicant is inclined to do so.

(e) The Applicant has already been detained for 302 days. His detention commenced before his previous leave application was even determined. The fact that leave was eventually granted demonstrates that the previous assessment of the Department that the Applicant could be removed within a reasonable time was erroneous. This highlights the danger in the Department’s practice of detaining such applicants before the result of an application for leave to commence judicial review is even available. This is an important factor that I took into account.

(f) It needs to be borne in mind that the Respondents bear the burden to demonstrate that the period of detention is reasonable and that the Applicant can be removed in a reasonably foreseeable future. Now that it is almost certain that the NRC would be remitted to the TCAB for determination, it would take at least another 6 months before a determination will be given by the Court of First Instance on an application for leave to commence judicial review, before he could be removed under the current policy (assuming his application is unsuccessful). This would bring his detention to a total of nearly 1.5 years. As explained above, only a limited part of this period can be attributed to the Applicant’s deliberate delaying tactic and should be discounted.

(g) Ms Hui accepted that a risk of abscondence, no matter how high, does not justify an indefinite period of detention. However, it is submitted that in view of the high risk of abscondence in the Applicant’s case, a further period of 6 months of detention should still be considered as reasonable. No further elaboration was given and no authority is cited or relied upon for this proposition.

(h) There is no doubt that the risk of abscondence and risk of re-offence are critical factors to be taken into account. However, I am of the view that those alone are insufficient in the present circumstances to justify further detention of at least 6 more months, especially in light of the 302 days that the Applicant had already been detained.”[20]

45.  For the above reasons, the Judge considered that, “[o]verall, weighing the period of detention – around 302 days – against all the other factors, I am not satisfied that HS2 and HS3 are met and the Applicant ought to be released on recognizance”[21].

46.  In support of this ground of appeal, Mr Lok argues that:

(1)  The Applicant’s detention for the period from 16 May 2023 to 27 September 2023 had been ruled by Coleman J as lawful in the Applicant’s first habeas corpus application.

(2)  As for the subsequent detention period (ie since the grant of leave to apply for judicial review of the Board’s Decision on 21 September 2023), it was clearly attributable to the Applicant’s conduct.

(3)  In the normal course of events, the Applicant ought to have filed an originating summons for judicial review of the Board’s Decision within 2 weeks from the date on which leave to apply for judicial review was granted[22].  He also ought to have accepted the settlement offer from the Department of Justice within a week from the date of the offer (1 December 2023).  However, the Applicant only accepted and signed the settlement offer on 15 April 2024.

(4)  The Judge noted that the Applicant “only filed the Form 86A two months later on 22 November 2023”, and rejected “the explanation that he could not file the Originating Summons earlier due to a lack of funds”, and concluded that “there [was] thus no reason why his filing of the Form 86A was delayed”.  She further held that “there [was] no legitimate reason as to why the Applicant would refuse to accept the DOJ’s settlement proposal in relation to the judicial review proceedings, when effectively the DOJ [had] proposed to accept all of the reliefs sought by the Applicant”.

(5)  Having correctly found that “the Applicant had deliberately delayed the remittance of his [non-refoulement claim] back to the TCAB” and that the period of detention was “prolonged by his deliberate refusal to co-operate”, the Judge appears to have discounted at least the period “between the time when the DOJ proposed settlement of the judicial review application on 1 December 2023 and the eventual conclusion of the judicial review”.

(6)  However, she held, inconsistently, that “only a limited part” of the total period (of about 1.5 years) of the Applicant’s detention (comprising 302 days from 16 May 2023 when the Applicant commenced to be held under immigration detention to the date of the hearing before the Judge, plus a period of at least 6 months before the Potential Leave Application could be disposed of) could be attributed to the Applicant’s delaying tactic and should be discounted.

47.  In our view, the Judge’s reasoning is unsatisfactory.  The period of the Applicant’s detention up to the date of the hearing before the Judge can be divided into 2 parts:

(1)  from 16 May 2023 to 27 September 2023 (the date of Coleman J’s decision on the Applicant’s first habeas corpus application) - 135 days; and

(2)  from 28 September 2023 to 12 March 2024 (the date of the hearing before the Judge) – 167 days.

48.  In respect of Period (1), Coleman J found that the period of the Applicant’s detention was reasonable and lawful in all the circumstances[23]. There was no appeal against that decision of Coleman J.

49.  In respect of Period (2), the Judge found that, by reason of the Applicant’s deliberate refusal to co-operate in the expeditious disposal of his application for judicial review, at least the period between (i) the date of the Department of Justice’s settlement offer (1 December 2023), and (ii) the eventual conclusion of the JR Proceedings, should not be counted when determining whether an originally lawful detention had become unlawful.  In view of the fact that, as at the date of the hearing before the Judge, the Applicant’s judicial review had not yet been concluded, on the Judge’s reasoning, the period from 1 December 2023 to 12 March 2024 (a total of 103 out of 167 days) should be discounted.

50.  Further, the Applicant was granted leave to apply for judicial review of the Board’s Decision on 21 September 2023.  He did not file an originating summons for judicial review until more than 2 months later (on 22 November 2023).  His explanation for the delay, namely, lack of funds, was rejected by the Judge, who took the view that there was no reason why his filing of the Form 86A was delayed. Under Order 53, rule 5(5) of the Rules of the High Court, Cap 4A, an originating summons must be issued for hearing of an application for judicial review within 14 days after the grant of leave, ie on or before 5 October 2023 in this case.  It follows from the Judge’s rejection of the Applicant’s explanation for his delay in filing the originating summons that the period from 6 October 2023 to 30 November 2023 (a total of 56 days) should also be discounted when assessing the reasonableness of the period of the Applicant’s detention.  In other words, the bulk of Period (2), from 6 October 2023 to 12 March 2024 (a total of 159 out of 163 days) ought to be discounted. The Judge did not explain why she did not discount the period from 6 October 2023 to 30 November 2023 when assessing the reasonableness of the period of the Applicant’s detention.  This omission appears to be inconsistent with her above-mentioned findings.  At §30(6)(f) of the 2^nd Decision, the Judge stated that “[a]s explained above, only a limited part of this period can be attributed to the Applicant’s deliberate delaying tactic and should be discounted” [underlining added].  If what the Judge meant to say was that only a small part of the Applicant’s detention up to 12 March 2024 ought to be attributed to his deliberate delaying tactic, that seems to us to be in error.

51.  In the above circumstances, it is open to this Court to undertake a reassessment of whether HS2 and HS3 are satisfied in the present case.  As a matter of principle, this assessment ought to be undertaken by reference to the situation as at the date of the hearing of the appeal (ie 15 August 2024).  In making this assessment, we take into account:

(1)  the period of the Applicant’s detention from 16 May 2023 to 27 September 2023 has been held to be reasonable by Coleman J in the Applicant’s first habeas corpus application;

(2)  the period of the Applicant’s detention from 6 October 2023 to 12 March 2024 ought to be discounted by reason of the Applicant’s deliberate delay in (i) filing the originating summons for the JR Proceedings, and (ii) accepting the Department of Justice’s settlement proposal;

(3)  the period of the Applicant’s detention from 13 March 2024 to 15 April 2024 (the date of settlement of the JR Proceedings) ought also to be discounted, in view of the Judge’s finding that the Applicant had deliberately delayed in accepting the Department of Justice’s settlement proposal; and

(4)  there is both a high risk of abscondence and a high risk of re-offending, as found by the Judge.

52.  We also take into account the fact that, by the time of the hearing of the present appeal on 15 August 2024, more than 5 months had elapsed since the date of the Judge’s decision (13 March 2024), and the proceedings before the Board were still on-going (with the next hearing before the Board being scheduled for 26 August 2024).  It seems clear that the further time which might be required before the Potential Leave Application could be disposed of would be more than 6 months from the date of the Judge’s decision. At the hearing of the appeal, we were told by the Applicant that many hearings before the Board were required because each hearing was for half a day only due to the fact that he was required to report to the Castle Peak Bay Immigration Centre (“CIC”) in Tuen Mun on a daily basis to answer his recognizance, and it took him a few hours to travel to and from the CIC every day.  It seems to us that this difficulty could easily have been overcome by the Director by a suitable relaxation of the recognizance conditions on the date(s) that the Applicant was required to attend a hearing before the Board.  Be that as it may, we could see no reason why the conclusion of the proceedings before the Board would be unreasonably delayed.

53.  Overall, looking at the matters as at 15 August 2024, and bearing in mind the four factors mentioned in §51 above, we are satisfied that the period of the Applicant’s detention up to 12 March 2024, and the further period of detention up to the disposal of the Potential Leave Application, are still reasonable, and it has not become apparent to the Respondents that the Applicant would not be able to effect deportation within a reasonable period; in other words, HS2 and HS3 are satisfied.  In coming to this view, we also take into account the fact that, had the Applicant remained in Hong Kong and persisted with his appeal/petition to the Board, continuous review of the Applicant’s detention would have been required, and it would have been open to the Applicant to make a further application for a writ of habeas corpus should there be any material change(s) of circumstances (eg unreasonable or further substantial delay in the proceedings before the Board).

DISPOSITION

54.  The Respondents’ appeal is allowed, the Order is set aside, and the Applicant’s application for a writ of habeas corpus filed on 1 February 2024 is dismissed.  On the issue of costs, in view of the fact that (i) the Respondents have been successfully in only one out of three grounds of appeal (ie Ground 3), (ii) the two unsuccessful grounds (ie Grounds 1 and 2) are quite clearly unmeritorious, (iii) Ground 1 was said by Mr Lok to be the Respondents’ main ground of appeal, and (iv) the appeal has been allowed on only a very narrow basis, we make no order as to the costs of the appeal.